HOJSGAARD v REGISTRAR-GENERAL OF LAND [2023] NZCA 562

HOJSGAARD v REGISTRAR-GENERAL OF LAND [2023] NZCA 562 [13 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA5/2022[2023] NZCA 562BETWEEN PETER HOJSGAARDAppellantAND REGISTRAR-GENERAL OF LANDRespondentHearing: 2 March 2023Court: French, Courtney and Mallon JJCounsel: P H Thorp and S P P Recordon for AppellantD J Watson and N B de Lautour for RespondentJudgment: 13 November 2023 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on aband A basis, together with usual disbursements. We certify for secondcounsel.____________________________________________________________________REASONS OF THE COURT(Given by French J)Table of ContentsIntroduction [1]Background history [7]The claim for compensation under s 58 of the Land Transfer Act 2017 [69]Section 58 [69]Mr Hojsgaard's claim [72]Relevant case law [76]Analysis [81]Is there a qualifying error or system failure? [81]The requirement of a causal nexus [106]Outcome [123]Introduction[1] Mr Hojsgaard owns land at Ōmāpere in Northland. In 2015 he challenged theaccuracy of a cadastral survey of neighbouring Māori freehold land. His principalobjection was that the boundaries depicted in the survey did not accord with thelocation of an historical stream which Mr Hojsgaard claimed used to run along hiswestern boundary. Mr Hojsgaard considered this omission adversely affected him, inparticular his ability to market his land as waterfront.[2] The survey in question had been approved by the Chief Executive of LandInformation New Zealand (LINZ) for integration into the cadastre under the CadastralSurvey Act 2002.1 After unsuccessfully requesting the Surveyor-General to correctthe survey,2 Mr Hojsgaard issued judicial review proceedings against theChief Executive of LINZ and the individual surveyor.3 The dispute ended up in thisCourt. This Court quashed the Chief Executive's approval of the survey and directedthem to reconsider the correctness of the survey in light of all the evidence that hadbecome available.41 Cadastral Survey Act 2002, s 9(d). For a discussion of s 9 and the Act, see Hojsgaard v ChiefExecutive of Land Information New Zealand [2019] NZCA 84, [2019] 2 NZLR 864 [Court ofAppeal judicial review judgment].2 Under s 52 of the Cadastral Survey Act.3 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 750, [2018] 3NZLR 99 [High Court judicial review judgment]. After filing the statement of claim and beforefiling the amended statement of claim in the High Court the Surveyor-General was substitutedwith the Chief Executive of Land Information New Zealand as the first defendant.4 Court of Appeal judicial review judgment, above n 1, at [111].[3] The reconsideration resulted in the survey being withdrawn. It was replacedby two new cadastral surveys prepared by Mr Hojsgaard's surveyor, redefining thehistoric stream bed to Mr Hojsgaard's satisfaction.[4] Mr Hojsgaard then initiated this second proceeding in the High Court, seekingcompensation from the Registrar-General of Land (the Registrar) under s 58 of theLand Transfer Act 2017. The case came before Toogood J. The Judge held the claimwas misconceived, being outside the scope of s 58.5[5] Dissatisfied with that outcome, Mr Hojsgaard now appeals.[6] In order to understand the arguments, it is necessary to traverse the backgroundin some detail.Background history[7] Mr Hojsgaard owns two contiguous parcels of land at Ōmāpere. Both are baresections. He purchased them at different times, the first in 1991 and the secondin 1998. It is the latter section that is the main focus of the proceeding. Its legaldescription is Lot 1 deposited plan 146636, record of title NA87B/961. Due to theproliferation of land title and survey plan numbers in this case, for ease of referencewe will call this section "the key Hojsgaard section".[8] The two bare sections were once part of a much larger block of land said tohave been gifted by the local hapū, Ngāti Korokoro, through a Crown grant to the firstEuropean settler in Ōmāpere. He was a maritime pilot by the name of John Martinwho arrived in the Hokianga Harbour in 1827.[9] The Māori land neighbouring John Martin's land comprised an area oftwo acres, 25 perches (0.8726 hectares) and was formerly known as the OmapereBlock.6 The first approved survey of the Omapere Block was undertaken in 1866during John Martin's period of ownership (the 1866 survey). The plan was given the5 Hojsgaard v Registrar-General of Land [2021] NZHC 3233, (2021) 22 NZCPR 691 [High Courtcompensation judgment] at [142]–[143].6 Macrons are not used in the Māori Land Court records when referring to Omapere Block,Omapere A and Omapere B.allocated plan number ML223 and continued to be the only approved survey of theOmapere Block before the survey at the centre of these proceedings.[10] The 1866 survey is reproduced below:[11] As will be seen, the plan depicts a stream labelled the Omapera [sic].[12] According to the evidence of the Principal Cadastral Surveyor at LINZ, thereis no indication from this plan that the location of the stream was surveyed. It ishowever now an agreed fact that when viewed facing downstream to the Hokiangaharbour, the right bank of Ōmāpere Creek is shown on the plan as forming the southernand eastern boundary of the Omapere Block. The left bank of the creek is depicted asforming the northern and western boundary of John Martin's land.[13] In 1900 the Omapere Block was partitioned by order of the Native Land Courtinto two blocks of land, Omapere A and Omapere B. Separate partition orders weremade in respect of each block but no new titles were issued. Omapere A was smallerin area being two roods, six and a quarter perches (0.2183 ha) as opposed toOmapere B being one acre, two roods, 18.75 perches (0.6543 ha).[14] The reason for the partition was that the land comprised in Omapere A hadbeen sold as general land.[15] The relevant Native Land Court minutes relating to the partition order containa reference to the 1866 survey. The front page of the partition order for Omapere Brecites the area of land in Omapere B and goes on to state "and which part isparticularly delineated in the plan indorsed hereon". Unfortunately, if there was a planendorsed in the order itself, it is no longer part of the record. On the evidence, it seemslikely that the plan in question was the 1866 survey.[16] In 1907, the Ōmāpere stream dramatically and suddenly changed course as theresult of heavy rains in the hills behind Ōmāpere. It now flows into the HokiangaHarbour some 100 metres north of the former mouth of the stream. It was commonground that as a matter of law the sudden change of the stream did not change theboundaries of the land previously abutting the stream.[17] The next relevant development was a survey undertaken by a Mr Wright in1991 of the key Hojsgaard section (the Wright survey). In 1998 the Wright surveywas accepted for deposit and recorded in the land registry as DP146636.As mentioned, Mr Hojsgaard purchased this land in 1998. The other bare section heowns had been surveyed by a different surveyor in 1951 (the 1951 survey).[18] In 2004 the then Government approved funding for a project known as theMāori Freehold Land Registration Project. Historically, there had been a mismatchbetween the records relating to Māori freehold land as held by the Māori Land Courtand the records contained in the land title register. The aim of the project was to ensurethat all relevant orders within the Māori Land Court records were submitted tothe Registrar and registered so as to ensure as far as possible that the land title registerand Māori Land Court records were aligned. It was a major undertaking which tooksome five years to complete.[19] The first step in the creation of a registrable Māori freehold title was thegeneration of a survey plan approved as to survey by the Chief Executive of LINZ.The next step was for the survey plan to be approved by the Māori Land Court and forthe Māori Land Court to order that title be issued.[20] As part of the Māori Freehold Land Registration Project, in 2007 theMāori Land Court commissioned a definition of Omapere B. By that time, theŌmāpere stream was no longer shown as separating the Hojsgaard property from theOmapere Block in the Landonline spatial view.7 This was a change from the 1964cadastral record maps.[21] Exactly when and why the spatial view changed is not entirely clear. However,on the evidence, the most likely explanation is that it was the result of the 1991 Wrightsurvey of the key Hojsgaard section.8 Mr Wright's survey plan, which became thedeposited plan on the register, did not depict the stream as an abutting parcel.[22] The survey of Omapere B commissioned by the Māori Land Court in 2007 wasundertaken by a Mr Lendrum (the Lendrum survey) and lodged with theChief Executive of LINZ on 24 April 2008. The Lendrum survey was requisitionedfour times and eventually withdrawn in January 2010. None of the requisitions relatedto concerns over the existence or otherwise of a hydro-parcel.[23] In March 2010 following the withdrawal of the Lendrum survey, theMāori Land Court issued two orders relating to Omapere B: a consolidated orderdeclaring the owners of Omapere B to be the three people named in the 1900 partitionorder, together with a status order declaring Omapere B to be Māori freehold land.9This was followed up by further action in May 2010 when the Māori Land Courtpresented three documents to the Registrar for registration:7 Landonline is the electronic computer system used to support both the cadastre and the land titleregister. The Landonline spatial view is a collection of the data that is held in the cadastre andland title register and is a visual depiction of that data, indicating where all the land parcels arelocated in relation to each other.8 That this was the reason for the change in the spatial view was suggested by Mr Hojsgaard'ssurveyor in his evidence.9 Under ss 129 and 131 of Te Ture Whenua Māori Act 1993.(a) a copy of the 1900 partition order for Omapere B;(b) a copy of the consolidated order; and(c) a copy of the status order.[24] The copies of all three orders were certified by the Māori Land Court as beingcorrect copies.[25] The orders were accompanied by a standard LINZ lodgement form listing thethree orders and also by a memorandum from a Māori Land Court official.[26] The subject line of the memorandum was "Omapere B (North Auckland LandRegistry)". It read:[27] The three orders were subject to pt 5, titled "Recording of ownership", of TeTure Whenua Māori Act 1993. For present purposes, the two key sections in pt 5 weress 123 and 124. Section 123 provided that every order subject to pt 5 was required tobe registered under the Land Transfer Act 1952, and that for the purposes ofregistration, the Registrar of the Māori Land Court was required to transmit the ordersto the Registrar. Section 124 provided that if such an order was presented forregistration under the Land Transfer Act 1952 but was not supported by a sufficientsurvey plan, the Registrar was required to embody the order in the provisional registeras a separate folium.[28] As at the date of the memorandum, this was done by issuing what was called a"CIR" (a computer interest register)10 with a notation that the order had been embodiedin the provisional register.[29] Significantly for present purposes, the first page of the partition ordercontained a handwritten notation alongside the imperial measurement of the area inOmapere B, which it will be recalled was one acre, two roods and 18.75 perches. Thehandwritten notation says "0.8726 ha". That however is the total land area of bothOmapere A and B. The correct metric measurement of Omapere B's area is 0.6543 ha.[30] Page three of the partition order contained the following sketch plan purportingto be of Omapere B:10 In accordance with the Land Transfer (Computer Registers and Electronic Lodgement)Amendment Act 2002, since repealed by the Land Transfer Act 2017.[31] Like the front page of the order, the sketch plan also had the wrong metricmeasurements. Further, it did not depict the partitioning of the Omapere Block into Aand B. Nor did it depict any stream separating the Omapere Block from the keyHojsgaard section.[32] Following receipt of the Māori Land Court documentation, the Registraractioned the request and issued a qualified record of title which was registered on8 June 2010. The title that was issued (the qualified title) read:[33] In September 2010, the Chief Registrar of the Māori Land Court, acting underdelegation from the Surveyor-General, commissioned a licensed cadastral surveyor,Mr Brill, to undertake a survey for the completion of the orders in respect ofOmapere B. Mr Brill was a surveyor of some 33 years' experience and had beenheavily involved in the Māori Freehold Land Registration Project.[34] Some weeks later in November 2010, Mr Brill lodged his survey ML 437558(the Brill survey). It depicted Omapere B in the same manner as the certified copy ofthe partition order. The supporting documentation included a spatial view, datedAugust 2007, showing the boundaries of the Hojsgaard land and Omapere B directlyabutting without any separation.[35] Following a validation process undertaken by delegates of the Chief Executiveof LINZ, the Brill survey was subsequently approved for integration under s 9 of theCadastral Survey Act. Being approved as to survey was a forerunner to the depositingof the plan under s 167(5) of the Land Transfer Act 1952, and the replacement of thequalified title with a fully guaranteed title. However, neither of those things everhappened.[36] In 2014 Mr Hojsgaard decided to sell his Ōmāpere land holdings with anauction scheduled for 3 December 2014. In addition to the two bare sections alreadymentioned, the sale also included a third Ōmāpere parcel of land owned byMr Hojsgaard, which had a bach on it. The properties were all marketed as waterfront.[37] According to an affidavit from Mr Hojsgaard's real estate agent, two daysbefore the auction the agent received a phone call from a woman stating sherepresented owners of a title that extended across the front of the two bare sectionsand accordingly that the land could not be sold as waterfront. The real estate agentfurther deposes that he then obtained a copy of the qualified title for Omapere B andforwarded it to Mr Hojsgaard. The latter was said to be "taken by surprise as he wasunaware of the existence of the title or its obvious impact upon the waterfront of hisproperty". Having discussed the implications of the qualified title, the agent and MrHojsgaard agreed the auction of the two bare sections could not proceed becauseadvertising them as waterfront could be claimed to be misleading.[38] The auction of the section with the bach on it did however proceed.[39] Following the withdrawal of the two bare sections from the auction,Mr Hojsgaard sought surveying and legal advice.[40] The surveyor he engaged, a Mr Thomson, was of the view that the Brill surveycontained two errors. The first error was that it did not depict the partitioning ofOmapere Block into Omapere A and Omapere B, and the second was that it did notdepict the stream separating the Hojsgaard land from the Omapere Block.Mr Thomson prepared a redefinition survey (the Thomson survey) which depictednew primary parcels for both Hojsgaard sections and also depicted the dried historicalstream bed as a hydro-parcel separating the key Hojsgaard section and theOmapere Block at the western boundary. The hydro-parcel was claimed to representthe historical location of the Ōmāpere stream.[41] The Thomson survey was formally submitted for approval in September 2015to the Chief Executive of LINZ. The Chief Executive of LINZ declined to giveapproval on the grounds that because the survey was a boundary-marking cadastralsurvey dataset of the two Hojsgaard sections, it was not permitted to create newprimary parcels. The Chief Executive also noted that the definition of Omapere B andthe Ōmāpere stream were to be addressed in a correcting survey. The sole benefit ofthe survey, as far as Mr Hojsgaard was concerned, was in the hydro-parcel, and if thatwas disallowed the only effect of the Thomson survey would simply be to confirm theundisputed boundaries of his two bare sections.1111 It would, however, still have been of considerable benefit to the owners of Omapere A. Had theBrill survey in its original form been accepted for deposit in the land title register and anindefeasible title issued, they would have lost their land. However, they would have been entitledto compensation for that loss under s 59 of the Land Transfer Act 2017. They could also haveapplied to the High Court for an order under s 54 to alter the register.[42] Mr Hojsgaard then made three separate requests to the Surveyor-General toexercise his powers under s 52 of the Cadastral Survey Act to require Mr Brill toamend his survey so as to depict the hydro-parcel.[43] All parties, including the Surveyor-General and Mr Brill, agreed that theomission of the partition of the Omapere Block was an error. Mr Brill duly prepareda replacement survey depicting Omapere A and B as separate blocks.[44] In correspondence with the Assistant Surveyor-General, Mr Brillacknowledged his failure to recognise the Omapere block had been split in two. Healso later said in evidence that the error was "lamentable", an "elementary" omissionand that he found it "difficult to understand how [he] made it". He said he made noattempt to excuse himself for the mistake, but could only offer an explanation as towhat occurred. That explanation primarily related to the quality of the historicaldocuments that he had been given. Mr Brill further stated that a subsequent review ofhigh resolution plans highlighted the error he had made.[45] Mr Brill corrected the error and sent an amended survey plan showing bothOmapere A and B to the Māori Land Court in January 2016. The date of the amendedsurvey is shown as 21 January 2016.[46] However, while Mr Brill was always willing to correct that error, neither henor the Surveyor-General were persuaded his depiction of the boundary betweenOmapere B and the key Hojsgaard section was wrong. Mr Brill's view was that thestream had never run along the western boundary of the Hojsgaard land but ratherflowed through a gully located within the Hojsgaard land. In evidence he supportedthis position by reference to a number of factors including a mathematical calculationhe had undertaken of the 1866 survey.[47] On 22 January 2016, which appears to be at around the same time as Mr Brillsubmitted his amended survey plan to the Māori Land Court, Mr Hojsgaard issuedproceedings in the High Court against the Surveyor-General and Mr Brill. As againstthe Surveyor-General, Mr Hojsgaard sought judicial review of the decision to approvethe Brill survey, an order quashing that decision, a declaration the Brill survey waswrong and a declaration that the Thompson survey was correct. As against Mr Brill,the statement of claim alleged negligence. Damages were sought against Mr Brill aswell as an order directing him to resubmit a survey replicating the Thomson survey.[48] The statement of claim underwent a number of iterations, including during thehearing itself. The Surveyor-General was replaced by the Chief Executive of LINZ asthe first defendant, and the negligence claim against Mr Brill was withdrawn, althoughhe remained a defendant against whom relief was sought.[49] The hearing in the High Court took place in 2017. It lasted eight days, duringwhich there was extensive expert evidence, some 1,750 pages of it including exhibits.The evidence was highly technical and surveying opinion was divided. Evidence wasalso called from a local kaumātua, geologists, and an archaeologist.[50] Much of the debate between the expert surveyors revolved around surveyingmethodology, the interpretation of previous surveys and plans and the 1991 Wrightsurvey's consistency, or lack thereof, with those previous surveys as well as physicalfeatures of the land. It is a well-established principle of surveying practice thatexisting survey plans once approved are presumed to be correct, and that compellingevidence is required before boundaries established by a prior approved plan can beamended. Hence the focus on consistency.12[51] As mentioned, the Wright survey was a survey of the key Hojsgaard section.Unfortunately, there were, as this Court noted in its 2019 decision, some ambiguitiesin the Wright survey.13 As also already mentioned, the Wright survey did not depictthe Ōmāpere stream as an abutting parcel on the deposited plan. The only referenceto the stream was in a report accompanying the plan, and there were competinginterpretations of the report.[52] At the 2017 High Court hearing, the various experts used illustrations of the1866 and 1951 surveys overlaid on a 1942 aerial photograph to undermine or to12 See Court of Appeal judicial review judgment, above n 1, at [17] and [19]–[20], citing ChiefExecutive Land Information New Zealand v Te Whanau O Rangiwhakaahu Hapu Charitable Trust[2013] NZCA 33, [2013] NZAR 539 [Otito Reserve] at [78], [90]–[91], [107] and [127].13 Court of Appeal judicial review judgment, above n 1, at [35].support the Wright survey. Mr Brill's position, supported by another witness, was thatif the Wright survey did depict the stream as forming the boundary, then it was anerror. In his view, the survey was not created with reference to any objectively reliableindication of the stream's historical path.[53] In the High Court, a panel of expert surveying witnesses was convened, andthey gave evidence concurrently. The panel agreed that although the 1991 Wrightsurvey plan did not explicitly depict any stream at the western boundary of the keyHojsgaard section, it did inferentially. In surveying terms, the panel interpreted astatement in Mr Wright's report as meaning he had defined the north-western boundaryby right-lining the former course of the stream.[54] Notwithstanding the panel's agreed position, the High Court Judge hearing thecase, Jagose J, was not satisfied Mr Wright's accompanying report was as definitiveas the panel thought.14 He was therefore not prepared to find, one way or the other,whether the western boundary of the Wright survey was depicted by a right-linedformer water boundary and hence whether the Brill survey was in conflict withthe Wright survey.[55] The Judge did however find it was incumbent on the Chief Executive to haveconsidered the issue of right-lining in order to determine whether there was a conflict,and if so how that conflict would be resolved.15 There was no evidence theChief Executive had turned their mind to this, and it followed they had failed to takea mandatory relevant factor into account rendering the decision to approve the Brillsurvey unlawful.16[56] The Judge accordingly directed the Chief Executive to reconsider anddetermine whether the Brill survey complied with the rules regulating cadastralsurveys,17 by reference to whether the western boundary of the Wright survey wasdepicted by a right-lined water boundary.18 The Judge was not however prepared to14 High Court judicial review judgment, above n 3, at [104].15 At [96].16 At [95], [97] and [105(b)].17 Rules for Cadastral Survey 2010. These Rules have the status of regulations.18 High Court judicial review judgment, above n 3, at [110].quash the decision to approve the Brill survey because he considered that was adisproportionate response to the Chief Executive's error.19[57] Mr Hojsgaard appealed that decision on two main grounds. First, thatthe Judge was wrong not to quash the approval of the Brill survey, and secondly thathe was wrong to decline to make any declaration based on the merits of the underlyingdispute.[58] This Court held it was not possible on the material before the Judge to makedefinitive findings about the merits of the competing surveying positions and thereforedismissed that ground of appeal.20 As regards the second ground, this Court acceptedit was possible the limited reconsideration ordered by the Judge might not have anysubstantive consequence, but pointed out that equally it might.21 The problem wasthat unless the decision approving the Brill survey was quashed before thereconsideration took place, the Brill survey would remain in the cadastre and thuscontinue to attract the presumption of correctness even if it turned out it should neverhave been there in the first place.22[59] This Court considered that such a "Catch 22" situation (something which hadnever been raised in the High Court) was unjust because the error identified bythe Judge went to the heart of Mr Hojsgaard's challenge.23 In terms of the prejudiceto the owners of Omapere B, this Court accepted that quashing the approval woulddelay the issue of their freehold title but would not in any way prejudice claimscurrently before the Waitangi Tribunal relating to ownership of the dried stream bed.24[60] This Court concluded that having considered the matter afresh, theChief Executive's decision should be quashed and so ordered.2519 At [106]–[109].20 Court of Appeal judicial review judgment, above n 1, at [83] and [93]–[94].21 At [102].22 At [104].23 At [105]–[108].24 At [108].25 At [109].[61] Following the decision of this Court, a delegate of the Chief Executive, whohad not previously had any involvement with the dispute, examined all the relevantevidence and carried out the reconsideration. The delegate concluded that the westernboundary of the Wright survey was a right-lined water boundary, that the Brill surveywas in conflict with the Wright survey, and that he or she could not be satisfied to therequisite standard that there was an error in the Wright survey or a sufficientlycompelling reason for its boundaries to be altered. In light of that determination,Mr Brill withdrew his survey, with effect from 20 August 2020.[62] Meantime, pending the completion of the reconsideration, Mr Thomson hadprepared a survey plan confined to a redefinition of the Ōmāpere dry stream bed andshowing a hydro-parcel. That plan was approved as to survey by the Chief Executiveof LINZ on 18 May 2020.[63] As a result of the withdrawal of Mr Brill's survey, the Māori Land Court, inSeptember 2020, issued a further requisition for a new survey of Omapere B.Having already undertaken that work, Mr Thomson submitted a survey, ML 537122,depicting the partition. That plan was approved as to survey by the Chief Executiveof LINZ on 9 December 2020.[64] By this time, Mr Hojsgaard had already issued the current proceedings seekingcompensation under s 58 of the Land Transfer Act 2017. The initial statement of claimfiled in November 2020 named both the Registrar and the Attorney-General asdefendants, the Attorney-General being sued "in respect of" LINZ. The Attorney-General was later removed as a defendant.[65] At the hearing, the Judge was provided with an agreed statement of facts,supplemented by affidavit evidence. Regard was also had to relevant evidence thathad been filed for the purposes of the judicial review hearing.[66] As mentioned, Toogood J rejected Mr Hojsgaard's claim for compensation,prompting the present appeal.26 We do not propose to summarise the Judge's26 High Court compensation judgment, above n 5, at [140]–[143].reasoning here, but address the relevant aspects later when considering the argumentsraised before us.[67] Finally, for completeness, we record that since Toogood J's decision, the MāoriLand Court has approved Mr Thomson's 2020 survey of Omapere B.27 The approvalmeans that title to Omapere B can now issue in terms of Mr Thomson's survey plan.The new title will replace the provisional title RT 524865, which will then be removedfrom the register.[68] We turn now to consider the merits of the appeal.The claim for compensation under s 58 of the Land Transfer Act 2017Section 58[69] Mr Hojsgaard's claim centres on events that took place while the 1952 LandTransfer Act was in force. However, it is common ground that his entitlement tocompensation is governed by s 58 of the legislation that replaced it, namely the LandTransfer Act 2017.[70] Section 58 is contained in subpt 3 of pt 2 of that Act. The main heading ofsubpt 3 is "Compensation", with a secondary heading "Grounds for compensation"(pertaining to ss 58–61). Section 58 states:58 Compensation for loss or damage resulting from Registrar's erroror from system failure(1) This section applies to a person who suffers any loss or damage as aresult of—(a) an error or a wrongful act or omission of the Registrar or of aperson to whom a power or function is delegated undersection 233; or(b) a failure or malfunction of a system or facility used to keepthe register under section 9.(2) The person may bring a proceeding in the court against the Crown forcompensation.27 Deputy Registrar – Omapere B (2021) 245 Taitokerau MB 189 (245 TTK 189) at 198–201.Approval was granted pursuant to r 7.7(6) of the Māori Land Court Rules 2011. The Māori LandCourt's approval was not required for Omapere A, that land being general land.[71] As is apparent from the wording, entitlement to compensation under s 58 isdependent on the claimant satisfying three prerequisites:(a) there has been either an error or a system failure as defined;(b) the claimant has suffered loss or damage; and(c) the loss or damage has been caused by the error or system failure.Mr Hojsgaard's claim[72] As pleaded, Mr Hojsgaard's claim is that, as result of errors and systemfailures, within the meaning of s 58(1)(a) and (b), his property was deprived of itsfrontage to the Hokianga Harbour or status as waterfront and that in order to rectifythis he was forced to incur considerable legal and surveying (and other expert) costs.These are said to amount to approximately $2.5 million.[73] It is the recovery of these costs that is sought rather than compensation for theloss of a potential sale when the 2014 auction was aborted, or any reduction in thevaluation of the property.[74] As to the pleaded particulars of the Registrar's alleged errors, wrongful acts oromissions, relied on for the purposes of s 58(1)(a), all concern the registration of thequalified title in 2010 and the use of the sketch plan, including placing it in the landregister.[75] As regards the alleged system failures relied on for the purposes of s 58(1)(b),these are specified as follows:(a) The failure of the Landonline system used to keep the land register torequire any checking for accuracy of such a sketch plan before placingit in the land register.(b) The failure of the Landonline system used to keep the land register toprevent all or any of the qualified title error, the Brill survey error orthe spatial plan error by:(i) requiring all deposited plans to distinguish on their faceright-lined water boundaries from ordinary boundaries;(ii) providing a satisfactory system for the identification in surveysof a right-lined water boundary separate from an ordinaryboundary;(iii) ensuring that the Landonline system included online all theinformation necessary to enable the discovery online of aright-lined water boundary separate from an ordinary boundary;(iv) ensuring that the Landonline system included online copies ofthe documents that accompanied surveys such as the Wrightsurvey and enabled the presence of a right-lined water boundaryto be detected, which documents, in the case of the Wrightsurvey, were not copied online until 1 July 2015; and(v) ensuring that the Landonline system adequately replaced themanual checking of surveys by the Chief Surveyor for theLand District, with reference to all accompanying documentsand the manually kept block sheet record, so as to prevent theoccurrence of errors such as the spatial plan error, the qualifiedtitle error or the Brill survey error.Relevant case law[76] This case is the first time this Court has considered s 58. There are, however,two High Court decisions, Registrar-General of Land v Marshall28 and Marriott v28 Registrar-General of Land v Marshall [1995] 2 NZLR 189 (HC).Attorney-General,29 which have analysed and interpreted the equivalent provision inthe 1952 Land Transfer Act, namely s 172(a).[77] Section 172 of the 1952 Land Transfer Act relevantly read:172 Compensation for mistake or misfeasance of RegistrarAny person—(a) who sustains loss or damage through any omission, mistake,or misfeasance in the performance of any duty, function, orpower imposed or conferred under this Act on the Registraror an employee of the chief executive of the department orperson to whom a delegation has been made under section 5may bring an action against the Crown for recovery of damages.[78] As will be apparent, the main difference between s 172(a) and s 58 is theinclusion in the latter of a second category of operative event, namely "a failure ormalfunction of a system or facility used to keep the register under section 9".We address the significance of that addition later in the judgment.[79] At this juncture, we note that the following general principles can be distilledfrom the two High Court decisions, principles which we consider to be of equalapplication to s 58:(a) The statutory claim for compensation was put in place because of thepotentially draconian consequences of a land title system that confersan indefeasible title (absent fraud) on registration.30(b) As a matter of legal policy, a wide scope for compensation is to bepreferred in advancing the general philosophy of the statute andaccordingly the word "loss" must be given a broad meaning.The section is not limited to cases involving deprivation of land butenvisages recovery for a wide range of damage.3129 Marriott v Attorney-General [2011] 1 NZLR 354 (HC).30 Marshall, above n 28, at 196.31 At 195–196.(c) A major limitation is the need for "a clear causal nexus" between theloss or damage sustained and the actions complained of.32 The merefact that something went wrong does not trigger a right tocompensation.33(d) The test to be applied is whether the actions complained of were theeffective cause or an effective cause of the loss or damage.34(e) The words "omission" and "mistake" must be given their natural andordinary meaning. They relate to something the Registrar has done oromitted to do in the execution of their duties. It is not necessary toestablish negligence.35[80] Mindful of these principles, we now turn to address the merits ofMr Hojsgaard's claim, and whether the Judge was wrong to find that it was outside thescope of s 58.AnalysisIs there a qualifying error or system failure?[81] The first issue to be determined is whether the alleged errors of the Registrarand system failures fall within the scope of s 58(1). In the High Court, the Judge foundthey did not.36[82] We start with s 58(1)(b). Under s 58(1)(b) the only sort of system failure thatattracts an entitlement to compensation is a failure or malfunction of a system used tokeep the register under s 9.[83] Section 9 reads:9 Registrar to keep register32 Marriott, above n 29, at [70].33 At [68]; and Marshall, above n 28, at 197.34 Marriott, above n 29, at [68], referring to Red Eagle Corporation Ltd v Ellis [2010] NZSC 20,[2010] 2 NZLR 492 at [29].35 Marshall, above n 28, at 196 and 198.36 High Court compensation judgment, above n 5, at [143].(1) The Registrar must keep and operate a register of land that is subjectto this Act.(2) The register must be kept in a form or manner determined bythe Registrar that—(a) records information; and(b) permits the recorded information to be readily accessed orreproduced in usable form.(3) For example, all or part of the register may be kept by means of acomputer system or facility that records information electronically.[84] In our view, correctly analysed the system failures relied upon byMr Hojsgaard are not capable of being regarded as failures of a system used to keepthe register under s 9. All of them relate to the processes followed in assessing andapproving cadastral survey data under the Cadastral Survey Act, and decisions aboutthe storage of cadastral survey data and access to that data. That is to say, they relateto systems operated by the Chief Executive of LINZ, not the Registrar.37 They do notrelate to the register of land subject to the Land Transfer Act 2017, which is the s 9register.[85] It is correct that both the land title register and the cadastre are supported bythe Landonline electronic system but the express reference to s 9 in s 58(1)(b) makesit clear, in our view, that s 58(1)(b) is only concerned with the land title register.[86] In attempting to argue otherwise, Mr Thorp, on behalf of Mr Hojsgaard, urgedus to adopt a purposive interpretation. He submitted that the addition of the new"system failure" category evidenced a legislative policy to provide a wide scope forcompensation.[87] We agree that the addition of the new category of system failure or malfunctionwidens the scope for compensation because it means compensation is no longerdependent on being able to establish wrongdoing by the Registrar. But, that does notmean Parliament intended to extend the right to compensation beyond matters relatingto the register of land. That would have been a material change with fiscal implicationsand, had that been Parliament's intention, it is reasonable to expect it to have said so.37 Cadastral Survey Act, s 9.It did not, and there is certainly no suggestion of any such intention in the legislativehistory materials.[88] The most likely explanation for the addition of the new category is that itsimply reflects the fact the land register is now kept and operated electronically andthat most dealings in land are carried out electronically. It was likely intended to coverthe situation where something went wrong in the automated process without therenecessarily being any error on the part of the Registrar. In saying that, we have notoverlooked Mr Thorp's further submission that during the Bill stage the provisionthat was to become s 58 was altered and the word "computer" removed. We do nothowever attach any significance to that change because, as counsel for the Registrar,Ms Watson, pointed out, parts of the register may still be stored in hard copy.[89] In short, we consider that Mr Hojsgaard's interpretation of s 58(1)(b) is nottenable and therefore that none of the alleged system failures or malfunctionsinvolving the cadastre and survey systems entitle him to compensation under s 58.[90] Turning then to the alleged errors by the Registrar or his delegate whichMr Hojsgaard contends come within s 58(1)(a). As mentioned, these revolve aroundthe registration of the qualified title and the deficient sketch plan, provided by theMāori Land Court as part of the certified partition order.[91] Clearly, the registration of the partition order and the issue of the qualified titlewere actions taken by the Registrar in the execution of his duties and so are capableof being within the scope of s 58(1)(a). The deficiencies are said to have been evidenton the face of the plan and so should have been immediately obvious to the Registraron even a cursory examination.[92] A major difficulty, however, for Mr Hojsgaard in advancing this contention iss 124(1) of Te Ture Whenua Māori Act.[93] That provision which was in force at the relevant time stated:124 Special provisions where insufficient survey plan(1) Where any order to which this Part of this Act applies is presented forregistration under the Land Transfer Act 1952, the [Registrar] shall, ifthe order is not supported by a plan defining the land affected by theorder and sufficient for the purposes of the registration of that orderunder that Act, embody the order in the provisional register as aseparate folium, and, subject to subsection (2) of this section, all theprovisions of that Act relating to provisional registration shallthereupon apply accordingly.[94] The partition order presented to the Registrar for registration in this case wasan order subject to s 124(1). Further, it was an order that was not supported by asufficient plan defining the land. Those being the circumstances, s 124(1) by its useof the word "shall" required the Registrar to embody the order in the provisionalregister as a separate folium. And that is what he or his delegate did. How then, itmight be asked, can compliance with a mandatory statutory obligation amount to anerror? If s 124 precludes the Registrar from going behind or questioning the certifieddocuments submitted by the Māori Land Court for registration, how can it be a failureof the Landonline system not to provide a process for checking such documents?[95] In her written submissions, Ms Watson contended that the obligation imposedon the Registrar by s 124(1) was an absolute one and that the Registrar did not haveany discretion to refuse to register an order, or part thereof, presented and certified bythe Māori Land Court as a correct copy for registration. However, in oral submissions,she accepted in response to a hypothetical situation put to her of a sketch plan showingthe location of the Ōmāpere land in the wrong region of New Zealand that in such acase there would be nothing in the legislative scheme preventing the Registrar fromquerying the order with the Māori Land Court. In fact in this case there was a checkdone of the spatial view to confirm, as Ms Watson put it, that the sketch corresponded"roughly" with the spatial view in terms of size and shape "in that rough location".[96] Her concession that s 124 does permit some discretion was in our view anappropriate concession to make.[97] That said, we do not consider any errors in the sketch plan at issue were in thesame fundamental and glaringly obvious category as a plan showing a completelydifferent location. Ultimately, it is a question of degree which must be assessed againstthe background of a legislative scheme that anticipates the existence of inaccuraciesincluding, in particular, inaccuracies and uncertainties around boundaries and the areaof parcels. That is the very reason a fully guaranteed title is not required, or permitted,in circumstances where s 124 of Te Ture Whenua Māori Act applies. Provisionallyregistered orders were intended to be subject to correction by a survey to be undertakenby a qualified surveyor.[98] The sketch plan in this case was expressly labelled "Sketch Plan Only".And the title that was issued was expressly issued on the basis that insufficientinformation existed to establish the location of the boundaries.[99] The only error that was apparent on the face of the partition order in this casewas the handwritten conversion on the first page of the imperial measurement forOmapere B's land area into hectares. It was mathematically wrong.38 It would havebeen evident to the Registrar that the handwritten notation could not have been madein 1900, but given the certification of the Māori Land Court it was not, in our view,for him to question whether the notation had later been made by the Court and whetherit was now part of the order. It was presented to him under the imprimatur ofthat Court. It was the Court that was the holder of the records, and he was under astatutory duty to action its request.[100] It is noteworthy that the other errors in the sketch plan, identified by Mr Thorp,were not obvious to qualified surveyors and, as the history of the case graphicallyillustrates, required detailed survey work and research to uncover. That is notsomething the legislation expects or contemplates the Registrar as doing. We includein that the criticism that the Registrar should have realised the reference to the"endorsed" plan must have been to the 1866 survey and that he should haveinvestigated the historical records, including 19th century Crown grants.38 The High Court found the Māori Land Court official may have been misled by an error in thespatial view rather than having made a mathematical miscalculation: High Court compensationjudgment, above n 5, at [137].[101] In the circumstances of this case, we accept Ms Watson's submission that theprimary assessment, and choice, for the Registrar was whether the order was supportedby a sufficient plan defining the affected land. He correctly concluded it was not,which meant s 124 applied.[102] As regards a further contention that the Registrar erred by registering the sketchplan because it was not part of the partition order, that is contrary to the evidence whichclearly shows the Māori Land Court stamp on the page with the sketch plan.[103] Another argument raised on behalf of Mr Hojsgaard was that the Registraracted in breach of s 42 of the Land Transfer Act 1952. Section 42 provided thatinformal instruments must not be registered. However, that argument overlooks thats 42 expressly stated that this requirement could be ousted by another Act, which iseffectively what s 124 of Te Ture Whenua Māori Act did.[104] Mr Thorp also argued that the Registrar could and should have invoked hisdiscretionary powers under s 43 of the Land Transfer Act 1952 to refuse to register theMāori Land Court order. Section 43 provided that if an instrument lodged forregistration with the Registrar was found not to be in order, then the Registrar had thepower to return the instrument or retain it unregistered pending rectification.However, we do not accept that a general discretion, such as that conferred by s 43,can properly be held to override the specific provisions of Te Ture Whenua Māori Act.Nor in our view, for the same reason, can regs 21(g) and 22 of the Land Transfer ActRegulations 2002, which together mandated that the Registrar not register anyinstrument that contained a non-compliant erasure or alteration to writing. Both werealso relied on by Mr Thorp.[105] Drawing all these threads together, we are driven to the conclusion that noneof the alleged system failures or errors come within the scope of s 58. That was thesame conclusion reached by Toogood J in the High Court and of itself it means theappeal must fail. However, were it necessary to do so we would also hold, for reasonswe now go on to explain, that Mr Hojsgaard's claim raises highly problematiccausation issues.The requirement of a causal nexus[106] As portrayed by Mr Hojsgaard's counsel, the causal connection between theerrors and the loss is that the errors caused loss of waterfront and, in order to restorethe waterfront to his property, it was necessary for him to incur the costs for whichreimbursement is sought.[107] There are two difficulties with that analysis.[108] The first flows from the fact that if the Māori Land Court order had notincluded any sketch plan, the outcome would have been exactly the same. Althoughthe impugned sketch plan would not have been registered and used as the title diagram,the Registrar would still have been required to issue a provisional title.[109] Likewise, even if the 1866 survey had been attached as part of the certifiedpartition order, or enquiries of the Māori Land Court had been made about the sketchplan and a copy of the 1866 survey obtained, a provisional title would still have beenrequired to issue.[110] Nor can it be said that the existence of the provisional title and the sketch planled to the Brill survey being approved and hence caused or contributed to causethe loss. Such a finding would be contrary to the legislative scheme. The Registrar isnot the guarantor of either the surveyor's work or the Surveyor-General's validationprocesses under the Cadastral Survey Act. As already mentioned, the legislativescheme relating to registration of orders from the Māori Land Court was based on theassumption that any boundary error in a provisional title would be cured by theintervention of a surveyor, and the Registrar was entitled to rely on that. We alsorepeat the point that Mr Brill was aware of the 1866 survey. He could not have beenmisled by its omission from the partition order.[111] If there is a loss in this case, the effective causes of that loss, and the onlyeffective causes, were the ambiguities in the Wright survey and the approval ofthe Brill survey. Neither can be a trigger for compensation against the Registrar unders 58 of the Land Transfer Act 2017.[112] The second difficulty is that it is quite unclear in any event what is meant inthis claim by loss of waterfront.[113] Surprisingly, there is no affidavit from Mr Hojsgaard himself nor have anycopies of the marketing material he used been produced in evidence. There is thereforeno evidence as to exactly how the term "waterfront" was used to promote the propertyand in turn the importance of the historical course of the stream for that purpose.[114] As Toogood J noted in his decision, the term "waterfront" is apt to describe aproperty which has frontage to the beach and sea views without having a legal right toaccess the sea.39 That would seem to have been the case for Mr Hojsgaard's land atall material times.[115] In submissions (which are not of course evidence), counsel for Mr Hojsgaardsays the steps taken were necessary to prevent the descendants of the owners ofOmapere B from fencing the waterfront boundary of his property and denying himaccess to the beach.[116] But even on the basis that loss of waterfront is intended to mean loss of accessto the beach, there is still the problem that neither the issue of a provisional title norchanges to the spatial view are capable of authoritatively effecting, determining orrestricting rights or interests, including rights of access over the Ōmāpere landbetween Mr Hojsgaard's land and the Hokianga Harbour.[117] A further problem is that the depiction of a hydro-parcel could not in any eventconstitute a restoration of that right. We accept it might be a first step to establishingsuch a right, but of itself it would not justify marketing the property as waterfront inthe sense of a pre-existing right of access over the Omapere B land to the beach. In itsprevious decision this Court recorded its understanding that ownership of thestream bed was contested and the subject of extant proceedings before theWaitangi Tribunal.40 There was nothing before the Court in this appeal to suggest thatthis is not still the case.39 High Court compensation judgment, above n 5, at [147].40 Court of Appeal judicial review judgment, above n 1, at [89].[118] Finally, for completeness, we refer to an argument raised by Mr Thorp for thefirst time on appeal. It involves an alleged error that was not pleaded, nor canvassedin the High Court. The alleged error concerns a note made by the Registrar's delegatewhen processing the Māori Land Court orders. The note reads:When searching the parcel in spatial, the legal description shown for the landwas Part Omapere but the order shows Omapere B. Title is issued inOmapere B and survey have been notified for spatial to be changed[119] Mr Thorp submitted to us that the Landonline spatial view named the area as"Part Omapere ML 223". That meant, in his submission, that the Registrar's delegatewas alerted to the 1866 survey, and should have checked it and identified the conflictbetween it and the sketch plan. The argument goes further and says the consequentremoval of any reference to ML 223 "likely will have caused the LINZ validator ofthe Brill survey not to notice the conflict with ML 223 when subsequently assessingthe Brill survey for approval".[120] In contending that the spatial view did refer to ML 223 at the time the Registrarreceived the Māori Land Court orders, Mr Thorp relies on documentary evidence asto what he says the spatial view showed in 1996 and 2007.41 It will be recalled thatthere was also evidence that the spatial view had changed sometime between 1964 and2007 and no evidence that as at 2008 it still referred to ML 223.[121] Further, and in any event, even if the spatial view did still refer to ML 223, theevidence does not establish any causal nexus between the delegate's direction to"survey" and the Brill survey. It is entirely speculative. There is no evidence thatMr Brill was misled by the absence of any reference to ML 223 in the spatial view.On the contrary, as already mentioned the evidence is that he was well aware of the1866 survey. What happened was that he and the Surveyor-General did not attach thesignificance to it that Mr Hojsgaard says they should have done regarding the stream.That is an outcome that cannot possibly be sheeted home to the Registrar. We repeat,if there was an error that caused the loss for which Mr Hojsgaard seeks compensation,it was a surveying error and it was made by what turned out to be a misinterpretationof the Wright survey.41 Whether that is the correct date of the document in question is disputed.[122] Having outlaid a very large sum of money, Mr Hojsgaard will understandablybe dissatisfied with the result of this appeal. However, in our assessment, correctlyinterpreted and applied to the facts, s 58 does not permit of any other answer in thecircumstances that arose here. It is not capable of providing Mr Hojsgaard with anavenue for compensation. We would also observe that there was a problem in anyevent with the quantum of the compensation claimed. A major part of the claimappears to be for all of the legal costs that have been incurred. However, it is clearthat some of these costs were not reasonably incurred and hence not recoverable. Forexample, the reasons for the adverse costs decision against Mr Hojsgaard in favour ofMr Brill in the first High Court proceeding remain valid;42 the 2018 appeal to thisCourt was won on a ground never raised in the High Court;43 other arguments raisedin the 2018 appeal were untenable; and there was also an unsuccessful recallapplication.44Outcome[123] The appeal is dismissed.[124] As regards costs on this appeal, there ais no reason why costs should not followthe event, meaning there is no reason why the unsuccessful party should not pay coststo the successful party.[125] The appellant must pay the respondent costs for a standard appeal on a band Abasis, together with usual disbursements. We certify for second counsel.Solicitors:Glaister Ennor, Auckland for AppellantCrown Law Office, Wellington for Respondent42 Hojsgaard v Chief Executive of Land Information New Zealand [2018] NZHC 2188.43 Court of Appeal judicial review judgment, above n 1, at [105] and [132].44 Hojsgaard v Chief Executive of Land Information New Zealand [2019] NZCA 257.